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Territory in International Law*

  • M.N. Shaw
Extract

The international community is formed first and foremost by states, which were defined by Vattel as “political bodies, societies of men who have united together and combined their forces in order to procure their mutual welfare and security”. The element missing from this definition relates to the need for a territorial basis for such political bodies. This necessity, however, is self-evident. As Oppenheim has noted, “a State without a territory is not possible”. This does not mean that territoriality is a criterion of personality in international law, but statehood is inconceivable in the absence of a reasonably defined geographical base. The frontiers of such an entity need not be established beyond dispute, nor is there any prescribed minimum of territory for the existance of a state, but some piece of land is essential before one can accept the establishment and continuation of a state.

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1. The Law of Nations or the Principles of Natural Law, vol. 2 (1758) p. 3.

2. International Law, vol. 1, 8th ed. 1955, p. 451.

3. See Delbez, , “Du Territoire dans ses Rapports avec l'Etat”, 39 RGDIP (1932).

4. Claims to Territory in International Law and Relations (1945) p. 3.

5. See Plato's Laws, Bk. 4, 704–10, and Bk. 5, 737. Aristotle's Politics, Bk. 7 Chapters IV and V. See also Gottmann, , The Significance of Territory (1973) pp. 1726.

6. Op.cit. p. 27.

7. Ibid. pp. 36–44.

8. See Nussbaum, , A Concise History of the Law of Nations (1954) p. 115.

9. Gross, , “The Peace of Westphalia, 1648–1948”, Gross, , ed., International Law in the Twentieth Century (1969) p. 25.

10. See e.g., Schoenborn, , “La Nature Juridique du Territoire”, 30 Hague Recueil (1929 V) pp. 85, 97–8.

11. International Law, 2nd ed. vol. 1 (1970) p. 403.

12. Jennings, , The Acquisition of Territory in International Law (1963) p. 87. See also Judge, Huber in the Island of Palms case 2, RIAA (1928) pp. 829, 838.

13. Op.cit. p. 14.

14. See e.g., Schoenborn loc.cit. pp. 92–4.

15. Introduction a l'Etude du Droit (1951) vol. 1, pt. 1, p. 87 quoted in Gottmann op.cit. p. 14.

16. Op.cit. p. 15, emphasis in original.

17. See the Nuclear Tests case, ICJ Reports, 1974, p. 253.

18. House Comm. on Foreign Affairs, 93rd Cong. 2d. Sess., Rep. of Official visit to Congress by a Delegation of the European Parliament 40 (Comm.Print. 1973), cited in Falk, , “A New Paradigm for International Legal Studies: Prospects and Proposals84 Yale Law Journal (1975), pp. 969, 1006.

19. Theory and Reality in Public International Law (1968) p. 405.

20. Op.cit. pp. 126–7. See also Delbez loc.cit. pp. 705–6 for an early view.

21. “Le Territoire et le Development du Droit International”, ASDI (1975) pp. 121, 145.

22. Ibid. p. 123.

23. Ibid. p. 121. See also Schou, , “Le Role du Territoire dans le Droit International”, Nordisk Tidsskrift for International Ret (Ada Scandinavica Juris Gentium 10) (1939) pp. 17, 23.

24. Loc.cit. p. 973.

25. Ibid. p. 1020. See also Ibid. p. 969.

26. See e.g., Lauterpacht, International Law and Human Rights (1950); Jenks, , The Common Law of Mankind (1958).

27. E.g., Friedmann, , The Changing Structure of International Law (1964).

28. See generally, Sohn, and Buergenthal, , The International Protection of Human Rights (1973).

29. See further, Articles 55–91.

30. See e.g., Article 1 of the International Covenants on Human Rights, 1966, and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, 1970.

31. See generally Bowett, , The Law of International Institutions, 3rd. ed. (1975).

32. Entered into force on 10 October 1967. See abo General Assembly Resolutions 1721 (XVI), 1962 (XVIII) and 1884 (XVIII).

33. See on the law of space, Fawcett, , International Law and the Uses of Outer Space (1968); Jenks, , Space Law (1965) and McDougall, , Lasswell, and Vlasic, Law and Public Order in Space (1963).

34. Adopted on 17 December 1970 in Resolution 2749 (XXV) by 108 votes to 0, with 14 abstentions. See also Assembly Resolutions 2340 (XXII), 2467 (XXIII) and 2574 (XXIV).

35. Those principles were reaffirmed in articles 3 and 4 of Part I, Informal Single Negotiating Text produced in 1975 by the Chairmen of the three main committees of the Third UN Conference on the Law of the Sea, A/Conf.62/WP.10. See also articles 136 and 137 of the Draft Convention of the Law of the Sea (Informal Text) of August 1980, A/Conf.62/WP.10/Rev.3.

36. Article 56 specified the rights, jurisdiction and duties of the coastal state, and article 58 set out the rights and duties of other states in the exclusive economic zone.

37. Op.cit. p. 461.

38. Note that the International Law Commission in its commentary on the Draft Articles relating to Diplomatic Immunity declared that it was guided by the theory of functional necessity justifying diplomatic privileges and immunities while bearing in mind the representative character of the mission and head of mission. It clearly rejected the extraterritoriality theory, see ILC Yearbook, 1958, vol. II pp. 94–5. See also Sahovic, and Bishop, , “The Authority of the State: Its Range With Respect to Persons and Places” in Sorensen, , ed., Manual of Public International Law (1968) pp. 311, 313–4.

39. Principles of Public International Law, 2nd ed. (1973) p. 280.

40. Brownlie expresses the principle corollaries of the sovereignty and equality of states as “(1) a jurisdiction, prima facie exclusive, over a territory and the permanent population living there; (2) a duty of non-intervention in the area of exclusive jurisdiction of other States; and (3) the dependence of obligations arising from customary law and treaties on the consent of the obliger” op.cit. p. 280 (footnotes omitted). Article 2(1) of the UN Charter states that “the Organization is based on the principle of the sovereign equality of all its Members”.

41. Note that Article 51 of the Charter refers to the “inherent right of individual or collective self-defence”.

42. Without a vote, in General Assembly Resolution 3314 (XXIX).

43. Article 3 specifies that the invasion or attack by the armed forces of a state of the territory of another state, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another state or part thereof would qualify as agression. Article 5 emphasises that no territorial acquisition or special advantage resulting from aggression are or shall be recognized as lawful. See generally, Stone, , Conflict Through Consensus (1977).

44. The Corfu Channel case, ICJ Reports, 1949, pp. 6, 22. The Court noted that the exclusivity of control of the territorial state might affect the proof obtainable by the other state in the former's territory, and thus a more liberal recourse to interferences of fact and circumstantial evidence, Ibid. p. 19. See also the Trial Smelter arbitration, 3 RIAA p. 1905, and Eagleton, , Responsibility of States in International Law (1928) and the Draft Articles of the International Law Commission, ILC Yearbook, 1976, vol. I, pp. 19–91, and vol. II, part 2, pp. 69–122.

45. See Sohn, , “The Stockholm Declaration on the Human Environment”, 14 Harvard International Law Journal (1973) p. 423, and Techoff, and Utton, , eds., International Environment Law, 1974, covering the extension of the principle to areas under a state's jurisdiction and control for certain purposes.

46. PCIJ Series A, no. 10, p. 18.

47. See U.S. Nationals in Morocco, ICJ Reports, 1952, p. 176. The right of a state to apply social legislation to strangers on its territory was affirmed in the Case Concerning the Application of the Convention of 1902 Governing the Guardianship of Infants, ICJ Reports, 1958, p. 55.

48. ICJ Reports, 1950, pp. 266, 275.

49. ICJ Reports, 1960, pp. 6, 45. Cf., the Declaration of Judge Basdevant Ibid. p. 49, the Separate Opinion of Judge Wellington Koo, Ibid. p. 68, and the Dissenting Opinion of Judge Spender, Ibid. p. 114.

50. See Dembinski, loc.cit. p. 127.

51. See Bowett, op.cit. p. 15–20; Stone, , Legal Controls of International Conflict (1959) Chapter 4, and Scott, , The Rise and Fall of the League of Nations (1973).

52. Note also that each Member has one vote in the General Assembly, and that the jurisdiction of the International Court of Justice in contentious matters is based on the consent of the parties, see Article 36 of the Statute of the ICJ, while in the case of advisory matters a state cannot be compelled to submit a dispute to a tribunal without its consent, Eastern Carelia case, PCIJ Series B no. 5 (1923). But see, as regards the modification of this rule, the Peace Treaties case, ICJ Reports 1971, pp. 16, 24 and the Western Sahara case, ICJ Reports, 1975, pp. 12, 22–7.

53. The customary rule to this effect developed rapidly in the early years of this century, see Oppenheim op.cit. pp. 517–9 and Article 1 of the Chicago Convention on International Civil Aviation, 1944.

54. See e.g., Article 2 of the Geneva Convention on the Continental Shelf, 1958, Article 24 of the Convention on the Territorial Sea and the Contiguous Zone, 1958 (which talks of controls to be exercised by Coastal States in the Contiguous Zone) and article 56 of the Informal Composite Negotiating Text, 1977 (and the Draft Convention of 1980), of the Third UN Conference of the Law of the Sea. By way of a contrast, Article 1 of the Chicago Convention (see previous footnote) specifies that “every State has complete and exclusive sovereignty over the airspace above its territory”, emphasis added.

55. See e.g., Phillips, , “The Exclusive Economic Zone as a Concept in International Law”, 26 ICLQ (1977) p. 5.

56. See in general, Umozurike, , Self-Determination in International Law (1972); Rigo-Sureda, , The Evolution of the Right of Self-Determination (1973); Shukri, , The Concept of Self-Determination in the United Nations (1965); Calegeropoutis-Stratis, , Le Droit des Peuples a Disposer d'Eux-Memes (1973); Cobban, , The Nation-State and National Self-Determination (1969); and Johnson, , Self-Determination Within the Community of Nations (1967). See also, Emerson, , “Self-Determination”, 65 AJIL (1971) p. 461; Gross, , “The Right of Self-Determination in International Law”. Kilson, , ed., New States in the Modern World (1975) p. 136; Kaur, , “Self-Determination in International Law”, 10 Indian Journal of International Law (1970) p. 479, and Suzuki, , “Self-Determination and World Public Order: Community Response to Territorial Separation”, 16 Virginia Journal of International Law (1976) p. 779.

57. The Declaration on Principles of International Law, 1970, contained in General Assembly Resolution 2625 (XXV).

58. See for a discussion of this, Higgins, , The Development of International Law Through the Political Organs of the UN (1963) p. 130 and El-Erian, , “The Legal Organisation of International Society”, Sorensen, , ed., Manual of Public International Law (1968) p. 95. For examples of cases, see UN Reportory or Practice, 1955, Vol. I, pp. 55156. See also Judge Ammoun, ICJ Reports, 1970, pp. 313–4.

59. Nationality Decrees Issued in Tunis and Morrocco, PCIJ Series B no. 4, p. 24.

60. See e.g., the Separate Opinion of Judge Bustamente, South-West Africa case, ICJ Reports 1962 pp. 6, 357, and the dissenting opinion of Judge Nervo, Ibid. p. 458. See also Wright, , Mandates under the League of Nations (1930).

61. See Article 22 of the League of Nations Covenant and Chapter XII of the UN Charter.

62. Chapter XI of the Charter.

63. The Namibia case, ICJ Reports, 1971, pp. 11, 31. See also the Western Sahara case, ICJ Reports, 1975, pp. 12, 31.

64. In the case of the Belgian trust territory of Ruanda-Urundi, the Trusteeship Council and the General Assembly of the United Nations recommended the evolution of a single, united and composite state, see T/L 985 and Add. 1, and T/L 1004 and T/L 1005 and Resolutions 1579 (XV) and 1605 (XV). However, a UN Commission for the territory called for the partition of the territory on the grounds of the “psychosis of mutual distrust” affecting the rival Tutsi and Hutu tribes, GAOR, 16th Session, 4th Committee, 1205 meeting, para. 14. This was accepted by the General Assembly which noted the desires of the constituent territories of Rwanda and Burundi to become separate states, Resolution 1746 (XV). In the case of Palestine, General Assembly Resolution 181 (II) emphasized that “the present situation … is likely to impair the general welfare and friendly relations among nations” and called for the partition of the territory into a Jewish and an Arab State. It should also be noted that the Palestine mandate incorporated the Balfour Declaration regarding the establishment of a Jewish national home in Palestine, and that there is nothing comparable in any other mandate or trust agreement. Additionally, while self-determination may have become a customary right in the early 1960s it was clearly not so in the late 1940s.

65. Although not, of course, upon the citizens of that state.

66. Adopted in Resolution 3281 (XXIX) by the General Assembly by 120 votes to 6, with 10 abstentions. The UK and USA voted against, while Canada, Japan and the Netherlands abstained.

67. See also Articles 4, 5, 10, 12, 13 and 27 and the Declaration on the Establishment of a New International Economic Order.

68. See e.g., Dembinski, loc.cit. and Gottmann op.cit.

69. As for example: economic development law, note the growing importance of UN Conferences on Trade and Development and the work of the UN Commission on International Trade Law.

70. Maine wrote that “if sovereignty had not been associated with the proprietorship of a limited portion of the earth, had not, in other words, become territorial, three parts of the Grotian theory would have been incapable of application”, Ancient Law (1861) p. 66.

71. 2 RIAA (1928) pp. 829, 838. See The Report of the Commission of Jurists in the Aaland Island case, LNOJ Suppl. no. 3, p. 6.

72. Op.cit. p. 2.

73. 2 RIAA (1928) p. 829, 838.

74. “That much abused word” according to Brierly, , The Law of Nations, 6th ed. (1963) p. 162.

75. Ibid.

76. 2 RIAA (1928) p. 829, 838.

77. Ibid. p. 839.

78. See the separate opinion of Judge Alvarez in the Corfu Channel case, ICJ Reports, 1949, pp. 4, 43. Bastid noted that “sur son territoire, l'Etat est en droit d'exclure l'action des autres Etats. Mais, par contre, la souveraineté territoriale est source d'obligation interna-tionales” see “Les Problèmes Territoriaux dans la Jurisprudence de la Court Internationale de Justice”, 107 Hague Recueil (1962 III) pp. 360, 367.

79. See Schoenborn loc.cit. p. 96.

80. Westlake, , International Law Part I, 1904, p. 86. See also Cavaglieri, , “Règies Générates du Droit de la Paix”, 26 Hague Recueil (1929 I) pp. 305, 385.

81. Op.cit., pp. 403–4.

82. Op.cit., p. 84. See also Grotius, , De Jure Belli ac Pacis, 1625, vol. II, Chapter III, s.4.2.

83. Ibid.

84. ICJ Reports, 1975, pp. 12, 48, 64 and 68.

85. Ibid. p. 47.

86. Ibid. p. 63.

87. Ibid. p. 93–4.

88. LNOJ Suppl. no. 3, 1920, p. 6.

89. ICJ Reports, 1975, pp. 12, 164.

90. Ibid. p. 68.

91. Ibid. p. 64.

92. See Schoenborn, loc.cit., pp. 100–2.

93. Cavaglieri noted that “le droit de l'Etat sure son territoire est un droit de nature reelle, un dominium, dont la nature et les effects appartiennent au droit public”. Loc.cit., p. 385. See also Donati, , Stato E Territorio (1924).

94. Schoenborn, loc.cit., p. 112, and see as regards servitudes Ibid. pp. 108–12.

95. See Hall, , A Treatise on International Law, 8th ed. (1924), p. 125 et seq.; Lawrence, , The Principles of International Law, 7th ed. (1929) p. 136 et seq. and O'Connell, , State Succession in Municipal Law and International Law, vol. I (1967) p. 22.

96. See Delbez, loc.cit. p. 711.

97. See Schoenborn, loc.cit. p. 114 and O'Connell, op.cit., footnote 95 pp. 22–3.

98. See Delbez, loc. cit., p. 712.

99. Schoenborn, loc.cit. p. 117, and O'Connell, op.cit.

100. See Kelsen, , General Theory of Law and State (1949).

101. Principles of International Law, 2nd ed. (1966) p. 307.

102. Ibid. p. 308.

103. See e.g. Delbez, loc.cit. p. 712; Schoenborn, loc.cit. p. 124 and Verzijl, , International Law in Historical Perspective, vol. III (1970) pp. 1213, who notes that territorial sovereignty may be adequately defined as “the plenitude of exclusive competencies [sic] appartaining to a State under public international law within the boundaries of a definite portion of the globe”.

104. Op.cit. p. 452.

105. International Law, vol. I (1970) pp. 367–9.

106. E.g., Lighthouses in Crete and Samos case, PCIJ Series A/B no. 71, p. 103 (1937), and O'Connell, op.cit. Chapter 10. Instances of divided sovereignty include mandated and trust territories, condominiums, servitudes etc.

107. International Law vol. I (1970) p. 377.

108. See O'Connell, op.cit., footnote 95 p. 27.

109. See on sovereignty, Schwarzenberger, , International Law and Order (1971) Chapter 5; Larson, , Sovereignty Within the Law (1965) and Stankiewicz, , ed., In Defence of Sovereignty (1969).

110. Anzilotti, , Cours de Droit International, 3rd ed. (1929) (trans, by Gidel), p. 51, cited in De Visscher, op.cit., p. 205.

111. De Visscher, op.cit. p. 206. The international argument is seen as minimizing the full human and national significance of territory, Ibid. Judge Alvarez in the Corfu Channel case declared that sovereignty “has its foundation in national sentiment and in the psychology of the people”, ICJ Reports, 1949, pp. 4, 43,

112. PCIJ, Series A, no. 10 (1927) p. 18.

113. “The Plea of Domestic Jurisdiction before International Legal Tribunals”, 31 BYIL (1934), pp. 96, 142.

114. See, e.g., Nationality Decrees Issued in Tunis and Morocco, PCIJ Series B no. 4, p. 24. Cf., Free Zones of Upper Savoy and the District of Gex, PCIJ Series A/B no. 46, p. 167, and Judge Read dissenting in the Anglo-Iranian Oil Co. case, ICJ Reports, 1952, p. 143.

115. Op.cit., p. 308.

116. Kelsen, , “Sovereignty and International Law” in Stankiewicz. ed., op. cit., p. 120.

117. But cf., Wheaton who notes that “every State has certain sovereign rights, to which it is entitled as an independent moral being; in other words because it is a State”, Elements of International Law, 6th ed. vol. I (1929) p. 150.

118. Corfu Channel case, ICJ Reports, 1949, p. 4, 43,

119. Op.cit., p. 4. See also Salmond on Jurisprudence, 12th ed. (1966) p. 331, where it is noted that “the title is the de facto antecedent, of which the right is the de jure consequent”. The Dictionnaire de la Terminologie de Droit International, 1960, sub. voc. defines “title” as “terme qui, pris dans de sens de titre juridique, designe tout fait, acte ou situation qui est la cause et le fondement d'un droit”. See also Brownlie, op.cit., pp. 126–7.

120. See e.g., the Eastern Greenland case, PCIJ Series A/B no. 53 p. 46.

121. See e.g., The Island of Palmas case, 2 RIAA, p. 829.

122. E.g., in the case of belligerent occupation.

123. To this some would add adjudication, see e.g., Starke, , Introduction to International Law, 8th ed. (1977) p. 184, but cf., Akehurst, , A Modem Introduction to International Law, 3rd ed. (1977) p. 144. See also Shaw, , International Law (1977) pp. 211–29.

124. See Oppenheim, op.cit., p. 546; Brownlie, op. cit., pp. 134–5 and Jennings op.cit., p. 6 et seq. A number of writers have stated that such a distinction is of little importance, see e.g., De, Louter, Le Droit International Public Positif, vol. I, (1920), p. 340; Verzijl, op.cit., p. 347 and Johnson, , “Consolidation as a Root of Title in International Law”, Cambridge Law Journal (1955) pp. 215, 217.

125. See O'Connell, op. cit., p. 405.

126. See e.g., the Island of Palmas case, 2 RIAA p. 829, The Eastern Greenland case, PCIJ Series A/B no. 53, and the Minquiers and Ecrehos case, ICJ Reports, 1953, p. 47.

127. See Oppenheim, op. cit., p. 575; Blum, Historic Titles in International Law (1965) Chapter 2, and Brownlie, op. cit., pp. 156–63.

128. “The increase of land through new formations”, Oppenheim, op.cit., p. 563.

129. Ibid. p. 547.

130. This flows from Article 2(4) of the UN Chapter prohibiting the threat or use of force against the territorial integrity or political independence of any state and from the doctrine of injuria jus non oritur, see Lauterpacht, op.cit. p. 420. Security Council Resolution 242 (1967) on the Middle East emphasized the “inadmissibility of the acquisition of territory by war”, while the 1970 Declaration on Principles of International Law states that “the territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force. No territorial acquisition resulting from the threat or use of force shall be recognised as legal”, note also Article 5, para. 3 of the Definition of Aggression adopted in 1974 by the General Assembly. See Ferencz, , Defining International Aggression (1975) p. 45.

131. See Article 52 of the Vienna Convention on the Law of Treaties, 1969. See also Yearbook of the ILC, 1963, vol. II, p. 197 and Ibid. 1966, vol. II, pp. 246–7.

132. See Johnson, loc.cit., p. 215.

133. Jennings notes that the case of the emergence of a new state is “by far the most important case of territorial change at the present time” and that international law here is “singularly undeveloped, uncertain and … comparatively unstudied”, The Acquisition of Territory in International Law (1963) p. 12. See also Starke, , “The Acquisition of Title to Territory by Newly Emerged States”, 41 BYIL (1965-1966) p. 411.

134. See especially the important article by Schwarzenberger, , “Title to Territory: Response to a Challange” in International Law in the Twentieth Century, ed., Gross, (1969) p. 287.

135. However, see e.g. as regards the “independent” Bantustans of South Africa General Assembly Resolutions 2775E (XXVI), 3411(XXX) 31/69 and 32/14, Security Council Resolution 407 (1977) and OAU resolution CM/Res. 493 (XXVII). See also Richardson, , “Self-Determination, International Law and the South African Bantustan Policy”, 17 Columbia Journal of Transnational Law (1978) p. 185.

136. Cavaglieri notes the doctrine which declares that sovereignty is not transmissible between states. The cessionary state will exercise its power and sovereignty over the region rendered terra nullius by withdrawal of the ceding state's sovereign power, loc.cit., p. 403.

137. See Reparation Commission v. German Government, AD, 1923–4, no. 199. Huber stated in the Island of Palmas case that “it is evident that Spain could not transfer more rights than she herself possessed”, 2 RIAA pp. 829.

138. Op.cit., p. 292. Huber declared that the new land accrued to a “portion of territory where there exists an actual sovereignty capable of extending to a spot which falls within its sphere of activity”., 2 RIAA pp. 829, 839.

139. See in particular Kelsen, op.cit., pp. 420–32, and De Visscher, op.cit., pp. 3, 8, 32.

140. It should, however, be noted that acquisition by prescription may be harder than acquisition by occupation, since there is a presumption against loss of title by the former sovereign, and since acquiescence by the former sovereign is required.

141. Op.cit., p. 209. See also the Anglo-Norwegian Fisheries case, ICJ Reports, 1951, pp. 116, 138.

142. Ibid. Prescription depends upon the possession by one state of the territory of another and relies upon the passage of time and the acquiescence of the displayed sovereign, see Johnson, , “Acquisitive Prescription in International Law”, 27 BYIL (1950) pp. 332, 349 and 353. See also Becket, , “Les Questions d'Interet General Permanente de Justice Internationale”, 50 Hague Recueil (1939 IV) pp. 189, 218–55. Occupation does not apply to maritime areas, see De Visscher, op.cit., p. 209.

143. Op.cit., footnote 124, p. 223.

144. Op.cit., p. 26.

145. ICJ Reports, 1951, pp. 116, 1389, and see also Ibid., p. 130.

146. See MacGibbon, , “The Scope of Acquiescence in International Law”, 31 BYIL (1954) pp. 143, 160.

147. Jennings, op.cit., pp. 25–6, emphasis added.

148. See O'Connell, op.cit., p. 407. Note also Jennings' criticism that the notion of consolidation is based upon “the merest hint in the case reports” op.cit. p. 27.

149. Island of Palmas case, 2 RIAA, pp. 829, 839.

150. 2 RIAA, pp. 829, 840.

151. PCIJ Series A/B no. 53.

152. 2 RIAA, p. 1105.

153. ICJ Reports, 1953, p. 47.

154. See the Island of Palmas case, 2 RIAA pp. 829, 840. See also Von der, Heydte, “Discovery, Symbolic Annexation and Virtual Effectiveness in International Law”, 29 AJIL (1935) pp. 462–3.

155. Ibid., p. 846. See also Von der Heydte, op.cit., p. 448 et seq.

156. Ibid., p. 869. See also, the Beagle Channel award HMSO (1977) and Jennings, op.cit., pp. 74–6.

157. Hill, , Claims to Territory in International Law and Relations (1945) p. 152. See also Westlake, op.cit., pp. 114–5.

158. See Corbett, , Law and Society in the Relations of States (1951) pp. 95–6.

159. The Island of Palmas case, 2 RIAA pp. 829, 839.

160. Ibid., presumably a state.

161. See e.g., Jennings, op.cit., pp. 28–31 and Jessup, , 22 AJIL (1928) pp. 735, 739–40. See also Minquiers and Ecrehos case, ICJ Reports, 1953, pp. 47, 56.

162. Note also the strong tendency not to change a “state of things” which actually exists and has existed for a long time”, the Grisbadarna case, I Scott, Hague Court Reports, pp. 121, 130.

163. See Island of Palmas case, 2 RIAA, pp. 829 and 870.

164. The reference here is not to consent or acquiescence as regards the creation of rules of international law.

165. See generally McDougal, and Feliciano, , Law and Minimum World Public Order (1961) pp. 733–6 and 739–44, Stone, op.cit. pp. 744–51 and Oppenheim, op.cit. Vol. II p. 618.

166. SCOR, 16th year, 987th meeting, especially paras. 46, 60 and 74.

167. See also the case of Ifni, Mathy, , “L'Autodetermination de Petits Territoires Revindiques par Etats Tiers (deuxieme partie)” Revue Beige de Droit International (1975) p. 129 and the comments of the International Court in the Western Sahara case, ICJ Reports, 1975, pp. 12, 35.

168. S/5033.

169. See Elliot, , “The East Timor Dispute”, 27 ICLQ (1978) p. 238; Guilhaudis, , “La Question de Timor”, AFDI (1977) p. 307 and Crawford, and Dayanidhi, , “East Timor: A Study in Decolonization”, 33 India Quarterly (1977) p. 419.

170. See also Security Council Resolution 389.

171. S/12133.

172. See e.g., Assembly Resolutions 31/53, 32/34, 35/27 and 36/50.

173. See e.g., UN Chronicle, January 1982, p. 19.

174. See e.g., GAOR 9th session, 1st Committee, 726th meeting, paras. 10–11 and 26 and A/4944. See also Rigo Sureda, op.cit., pp. 143–51 and 228–33.

175. Yearbook of the United Nations (1962) pp. 124–7.

176. A/7723 and Yearbook of the United Nations (1969) pp. 175–7.

177. Ibid., pp. 177–8.

178. Not all such acts would operate within the context of title creation; see the Frontier Lands case, ICJ Reports, 1959, pp. 209, 229 and the Western Sahara case, ICJ Reports, 1975, p. 12.

179. See the Eastern Greenland case, PCIJ Series A/B no. 53, pp. 51–2. See also, Jennings, op.cit., pp. 38–45; Schwarzenberger, op.cit., pp. 295–6 and Blum, op.cit., pp. 49–52.

180. Blum states that recognition “is one of the main means of expressing consent in international relations”, op.cit., p. 49. Schwarzenberger refers to its “wide actual, and a still greater potential, acope”, “Fundamental Principles of International Law”, 87 Hague Recueil (1955 II) pp. 195, 228.

181. See Akehurst, op.cit., p. 147, but cf., Brownlie, op.cit., p. 173.

182. See, in particular, General Assembly Resolutions 2145 (XXI), 2248 (XXII), 2372 (XXII), 2403 (XXIII), 3031 (XXVII) and 3111 (XXVIII); Security Council resolutions /64 (1969), 269 (1969), 276 (1970), 301 (1971), 323 (1971) and 385 (1976) and the Namibia case, ICJ Reports 1971, p. 16. See generally Dugard, , The South-West Africa/Namibia Dispute (1973) and Slonim, , South-West Africa and the UN: An International Mandate in Dispute (1973).

183. For example, the Bantustans situation, see n. 135.

184. See Jennings, op.cit., p. 85 and Brownlie, op.cit., p. 164. Brownlie notes that the “strength of institutionalised and general recognition is obvious”, Ibid.

185. In addition to the Bantustans situation, one may note the case of Rhodesia, see General Assembly Resolutions 2024 (XX) and 2151 (XXI) and Security Council Resolutions 216 (1965) and 217 (1965). See also, e.g., Fawcett, , “Security Council Resolutions on Rhodesia”, 41 BYIL (19651966), p. 103, and Higgings, , “International Law, Rhodesia and the United Nations”, The World Today (1967) p. 94. Note that non-recognition does not invalidate a valid title. It witholds validation from a title which is invalid for some other reason.

186. See Oppenheim, op.cit., p. 551 and Corbett, , Law and Society in the Relations of States (1951) pp. 104–5. The situation with regard to trusteeship territories where there are conflicting options as to the end result of an act of self-determination is rather different. See as to the Cameroons plebiscite, 171556 and A/4684/Add.1 and as to the Togoland plebiscite, T/1270 and T/1301.

187. There may, of course, exist constitutional provisions which call for the consent of the inhabitants in such a cession, see e.g., Article 27 of the 1946 French Constitution which provided that “no cession, no exchange and no additions of territory shall be valid without the consent of the populations concerned”, Peaslee, , Constitutions of Nations, 2nd ed. (1956) vol. II, pp. 6, 10.

188. See articles 17–26 of the 1980 Draft Convention on the Law of the Sea.

189. Ibid., articles 55–56, 60, 77–8 and 80.

190. Ibid., article 76. See also the North Sea Continental Shelf cases, ICJ Reports, 1969, p. 3; the Anglo-French Continental Shelf case, Cmnd. 7438 (1978) and the Tunisian-Libyan Continental Shelf case, ICJ Reports, 1982.

191. Articles 60 and 80 of the 1980 Draft Convention. This Draft with some changes, was adopted on April 30 1982, by 130 votes to 4 with 17 abstentions.

192. ILC Yearbook, 1964 Vol. II, pp. 12–15. See also McNair, , Law of Treaties (1961) pp. 116–19, and Veizijl, , International Law in Historical Perspective, vol. VI (1973) pp. 284–5. When it is desired that the particular treaty in question should also cover territories for which the UK is internationally responsible this will usually appear clearly. For example, the 1972 UK-USA Extradition Treaty was extended to cover 21 territories for which the former was internationally responsible by an Exchange of Notes in 1976, see Cmnd. 6723. Note also, that Article 63 of the European Convention on Human Rights, 1950, provides that the Convention may be extended to territories for which the Contracting Parties are internationally responsible by notification to the Secretary-General of the Council of Europe. On 19 August 1981, the UK renewed the acceptance of Articles 25 and 46 of the convention on behalf of Belize, Bermuda, the Cayman Islands, the Falkland Islands, Gibraltar, the Turks and Caicos Islands, the Bailiwick of Guernsey and St. Helena under this provision, see, Minutes of the 150th session of the European Commission of Human Rights, November 1981, p. 9. As for practice relating to the Channel Islands and the Isle of Man, see MacNair, op.cit., p. 118, note 2 and Waldock's Commentary on Article 58 of the ILC Draft on the Law of Treaties, ILC Yearbook, 1964, vol. II, p. 13. See also, generally, Sinclair, , The Vienna Convention on the Law of Treaties (1973) pp. 5662.

193. ILC Yearbook, 1964, vol. I, p. 49. See also Yasseen, Ibid., p. 50.

194. For example, El-Erian, Ibid., p. 46, and Payedes, Ibid., p. 233. It is interesting to note here that the International Labour Organisation adopted in 1964 an amendment to its constitution stating that “members ratifying conventions shall accept their provisions so far as practicable in respect of all territories for whose international relations they are responsible”, Ibid., p. 233 and Johnston, , The International Labour Organisation, (1970) Chapter 20. See also, the comments of Algeria, ILC Yearbook, 1966 vol. II, p. 65.

195. ILC Yearbook, 1964, vol. I, p. 233 and Ibid. 1966, vol. I, p. 46. In its commentary to the article in question, the Commission noted that the phrase “the entire territory of each party” was a comprehensive term designed to embrace all the land and appurtenant territorial waters and air space which constitute the territory of the state, UN Conference on the Law of Treaties, Official Records, First Session, p. 33.

196. There were arguments over the extra-territorial application of treaties but reference to this particular issue in the draft article was not accepted by the Commission. See ILC Yearbook, 1966, vol. I, pp. 46–8 and Ibid. vol. II pp. 64–6.

197. See UN Conference on the Law of Treaties, Official Records, First Session, 30th Meeting, paras. 49–51 and 61.

198. Although our purpose here has been to discuss the nature and concept of territory as a phenomenon of international law, it should also be noted in passing that within the sphere of municipal law, municipal courts may in the course of treaty or statute interpretation analyse the notion of territory in a slightly different fashion. In particular, territory may for these specific purposes often be assimilated to the concept of jurisdiction. For example, the House of Lords in Schtraks v. Government of Israel had to determine whether “territory” within the context of an Israel-UK extradition arrangement also included Jerusalem, recognised de facto and not de jure by the UK as part of the State of Israel. It was held that for these purposes, “territory” included areas over which de facto authority was being exercised. [1962] 3 All ER 529 especially at pp. 532 (Lord Reid), 537 (Viscount Radcliffe), 541 (Lord Evershed) and 548 (Lord Hodson). See also R v. Governor of Brixton Prison, ex pane Minervini [1959] 1 QB 155.

* © M.N. Shaw, 1982.

** Senior Lecturer in Law, University of Essex.

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Netherlands Yearbook of International Law
  • ISSN: 0167-6768
  • EISSN: 1574-0951
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